On the Docket: Supreme Court Cases, Week of Oct. 29, 2007

WASHINGTON – The following is a summary of cases the U.S. Supreme Court will hear for the week of Oct. 29-Nov. 2, 2007:

Case: Klein & Co. Futures v. Board of Trade of the City of New York

Argument Date: Monday, Oct. 29

Law in Question: Commodities Exchange Act (CEA)

Concern: Do futures commission merchants have standing to sue under the CEA?

Impact: This is yet another case the high court will hear in the wake of this decade's financial scandals. One case already heard by the court, Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., et al., involving a third party's right to sue, drew the interest of swindled Enron investors. This similar case involving the $100 billion commodities market could offer further clarity on the legal options available to individuals or businesses that unwittingly end up on the short end of illegal financial activity.

Question Presented: “Whether the court of appeals erred in concluding that futures commission merchants lack statutory standing to invoke that right of action because, in the court’s view, they do not engage in such transactions, despite the statutory requirement that the merchants enter into and execute their transactions on, and subject to the rules of, a board of trade and the fact of the merchants’ financial liability for the transactions.”

Who is Affected: Anyone who has ever heard of the Commodities Exchange Act might be interested. The case is unlikely to affect most people, however, unless they happen to have lost a job at Klein & Co. or are a player in the commodities market or a student of the CEA.

Background: The executives at Klein & Company Futures are none to happy about their dealings with a former executive with the New York Board of Trade. After all they lost their brokerage house in 2000 after it was discovered that Norman Eisler was manipulating commodities prices. Eisler and his own company, First West Trading Inc., used Klein's business to purchase futures contracts.

The Commodity Futures Trading Commission determined Eisler, in his executive role with NYBOT, was falsely inflating the value of his own company by $2 million a day. When the supposed scheme fell apart Eisler and his company couldn't make ends meet, and Klein, as the purchasing agent, was forced to absorb the losses, something they weren't able to do and as a result went out of business.

Klein sued the NYBOT saying it failed to follow proper internal procedures that might have red-flagged the abuse. But lower courts ruled Klein acting as a third-party intermediary lacked standing to bring such a case forward. In its petition to the High Court, lawyers for Klein argued “without the right of action, the risk of economic loss rests on the merchants rather than on the wrongdoers who cause or are required to enforce rules designed to prevent the actual losses.”

Case: Ali v. Federal Bureau of Prisons

Argument Date: Monday, Oct. 29

Law in Question: Federal Tort Claims Act (FTCA)

Concern: Does the FTCA immunity for officers extend to all members of Federal law enforcement?

Impact: An inmate on his way to a new prison temporarily left behind a couple of bags with a police officer. When the inmate caught up with the bags at his new prison he discovered some items were missing. After the Federal Bureau of Prisons refused to move on the case the inmate sued in U.S. District Court. But that court and an appeals court determined the lawsuit lacked jurisdiction because the officer in question — and therefore the Federal Bureau of Prisons — was immune from legal action under a provision in the Federal Tort Claims Act.

A decision in this case could unequivocally affirm the determination of the lower courts in this particular case. However other circuits have more narrowly interpreted the law and a decision in line with those determinations would effectively be interpreted as a victory for prisoner’s rights.

Question Presented: “Under 28 U.S.C. 2680(c), the Federal Tort Claims Act’s waiver of sovereign immunity does not extend to “[a]ny claim arising in respect of * * * the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” The question presented, over which 10 circuits are divided six to four, is: Whether the term “other law enforcement officer” is limited to officers acting in a tax, excise or customs capacity.”

Who is Affected: Those with a large federal prison in their area, and therefore correctional officers and families nearby, may care.

Background: Abdus-Shahid Ali was an inmate at the Federal Penitentiary in Atlanta when it was decided he should be transferred to the federal prison in Inez, Ky., in December 2003. As part of the transfer process, Ali left two duffle bags of his possession in the custody of federal officers for examination. Those bags did not travel with Ali but arrived in Kentucky shortly after he did. When going through the bags he discovered a number of religious and other personal items were missing.

The 1946 FTCA allowed for legitimate tort claims to be brought against federal employees, thus making no distinction between them and other private citizens. However, Congress included 13 exceptions in the FTCA including “any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."

This exception protects those specific federal employees from legal action. The question before the court is who constitutes “any other law enforcement officer?”

Case: United States v. Williams

Argument Date: Tuesday, Oct. 30

Law in Question: The PROTECT Act of 2003.

Concern: Does the PROTECT Act, a hallmark piece of child pornography legislation; violate First Amendment freedom of speech rights?

Impact: The past decade has seen a significant effort by government officials to crack down on child pornography. It has been a focus of the Bush administration’s Justice Department and passage of the PROTECT Act in 2003 was immediately followed by a Rose Garden signing ceremony. The law established federal guidelines for Amber Alerts and broadened the scope of what constitutes child pornography. President Bush said “in the past, prosecutors have been hindered by not having all the tools needed to prosecute criminals who create child pornography. Under the PROTECT Act, we've seen images of children, even those created with computer technology, will now be illegal, giving prosecutors an important new tool.”

The Supreme Court struck down an earlier kiddie porn law for being too broad and this case carries with it the same issue. A decision in favor of the government will serve to support law enforcement’s attempts to crack down on kiddie porn peddlers. A decision against the government will certainly prompt the Congress to quickly move on legislation again.

Question Presented: “Section 2252A(a)(3)(B) of Title 18 (Supp. IV 2004) prohibits “knowingly advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material” is illegal child pornography. The question presented is whether Section 2252A(a)(3)(B) is overly broad and impermissibly vague, and thus facially unconstitutional.”

Who is Affected: Anyone who wants to protect a child from pornography.

Background: In 2004, Michael Williams was convicted of two counts of child pornography. An undercover agent working in an Internet chat room popular with child pornographers had targeted him. Williams posted a number of graphic messages detailing his possession of pornographic pictures and was looking to exchange them for others. “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.”

Williams was arrested and charged with two counts of child pornography. One count was based on his possession of it on a computer disk found in his home. The other was based on him “knowingly advertising, promoting, and presenting material ‘in a manner that reflects the belief, or that is intended to cause another to believe,’ that the material contains illegal child pornography.” It is this second count that is basis of the Supreme Court challenge.

Incredibly, the 11th Circuit Court of Appeals concluded Williams in fact possessed child pornography but nevertheless overturned that part of his conviction. It ruled the specific part of the PROTECT Act that was the basis of the conviction was too broad. It specifically concluded that the law as written could include material that didn’t even exist or wasn’t actually child pornography. Adding the act “abridges the freedom to engage in a substantial amount of lawful speech in relation to its legitimate sweep.”

The government argues the 11th Circuit’s reasoning is false and concludes the PROTECT Act is neither overly broad nor vague and is constitutional. “The court of appeals’ decision is incorrect. The court misinterpreted the scope of [the statute in question] by reading it more broadly than its language warrants. The court’s misapprehension about what the statute prohibits and what it leaves unrestricted infected both its overbreadth and its vagueness analysis.”

Impact: California’s “three strikes” law for sentencing repeat offenders is perhaps the most well known law at getting so-called career criminals off the streets. The federal government’s version is called the Armed Career Criminal Act (ACCA). It requires heavier penalties for felons who have been convicted of three or more violent crimes. This case calls into question some of the specific language of ACCA. The high court could affirm the lower court’s literal reading of the “civil rights resorted” language when counting convictions. Or it could side with the felon who says his prior convictions didn’t result in the loss of his civil rights and therefore shouldn’t be counted against him in elevating his sentence under ACCA.

Question Presented: Whether the “civil rights restored” provision of 18 U.S.C. §921(a)(20) applies to a conviction for which a defendant was not deprived of his civil rights thereby precluding such a conviction as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. §924(e)(1)?

Who Is Affected: Career criminals subject to the ACCA.

Background: James Logan was not unfamiliar with the criminal justice system. Over the years the Wisconsin man had found himself in various courtrooms facing a number of charges. In 2005 police found a gun in his glove compartment that he wasn’t supposed to have and was arrested. Logan eventually pleaded guilty to the weapons charge but his status as a repeat offender under the ACCA increased his sentence from a maximum of ten years to a minimum of 15 years.

The beefed up sentence was due to ACCA’s provision calling for a 15-year minimum term for anyone with at least three drug or violent felony convictions. Logan said one of those prior bad acts — a battery conviction — was considered a misdemeanor, not a felony, by Wisconsin state courts. As such it shouldn’t count against him under federal sentencing laws. But the federal government determined that this specific past violent crime was sufficient to qualify Logan for the added years proscribed by ACCA.

The specific language of the ACCA statute bases prior convictions on a “civil rights restored” basis. In other words, a felon who goes to prison loses certain civil rights but may regain them upon the completion of his or her sentence. In these cases the individual does not have that conviction held against them under ACCA. Because Logan's prior convictions were considered misdemeanors in Wisconsin, he never lost his civil rights privileges in the first place. His lawyers contend he couldn’t possibly have regained something he never lost. “A literal reading [of the statute] offends common sense and produces an absurd result based on the legislative purpose of that amendment,” said Rick Coad, Logan’s attorney.

The 7th Circuit Court of Appeals agreed with the government’s position adhering to the strict language of the statute. “Wisconsin has neither forgiven him nor misled him about the (federal) consequences of his convictions, and as his convictions are serious enough to come within the federal definition of violent felonies they require sentencing as a recidivist under the Armed Career Criminal Act.”

Case:Stephen Danforth v. Minnesota

Argument Date: Wednesday, Oct. 31

Law in Question: Retroactive use of Supreme Court decisions.

Concern: Can state courts use a broader standard than the Supreme Court when it comes to re-examining prior criminal cases based on new rulings of the Supreme Court.

Impact: This is a double jeopardy case in reverse. A Minnesota man was convicted in part on testimony the Supreme Court later determined — in a separate unrelated case — to be unconstitutional. This high court decision presented the convicted man another opportunity to appeal his conviction. That appeal is now before the Supreme Court. A ruling in favor of the convicted man could give hope to others in similar situations to seek appeals based on after-the-fact changes to constitutional rules of criminal procedure.

Question Presented: Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law- or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?

Who Is Affected: People who've had their cases tried at the Supreme Court previously.

Background: in 1996 Stephen Danforth was convicted of sexually abusing a six-year old boy and sentenced to more than 26 years in prison. The abused child was found incompetent to stand trial but his videotaped testimony was presented to the jury. After the conviction, the Supreme Court in Crawford v. Washington found that such testimony without the possibility of cross-examination was unconstitutional. Danforth appealed his conviction (for the second time) based on the high court’s ruling in Crawford.

Another Supreme Court decision, Teague v. Lane, spells out what circumstances a defendant can appeal his or case based on post-conviction rulings. In this case the Minnesota State Court of Appeals refused to retroactively apply the Crawford ruling. At the Minnesota Supreme Court, Danforth also argued the state was able to more broadly determine retroactivity than the guidelines proscribed by the Supreme Court in Teague. The Minnesota Supreme Court rejected both arguments saying “Danforth is incorrect when he asserts that state courts are free to give a Supreme Court decision of federal constitutional criminal procedure broader retroactive application than that given by the Supreme Court … and conclude that we are not free to fashion our own standard of retroactivity for Crawford.”

The United States Supreme Court has already ruled that its Crawford decision does not apply retroactively under Teague but agreed to hear the case concerning Danforth’s other argument about states using broader standards when considering retroactivity matters.